I was talking to a friend today about her concern over her choice of paving materials for a new patio/fire pit she’s building in her backyard. (She recently bought her first house, and she’s got big plans!) She’s thinking cobblestones, but she’s worried about the surface being uneven, causing chairs to be unstable on the patio. So I figured I would write about liability issues for property owners.
Idaho law establishes three categories of visitor to your land. An “invitee” is someone who comes to a property to confer a business, commercial, or monetary benefit to the occupant of the land. You are an invitee when you go to Winco to do some grocery shopping. A “licensee” is a person who goes to a property with consent of the occupant as a social guest. When your friends come over to share some beers and BBQ around your fire pit, they are licensees.
Finally, a “trespasser” is a person who goes to a property without the owner’s consent. Obviously, someone who breaks into your house is a trespasser, but a friend could become a trespasser if you didn’t give consent for them to be in a particular part of your property. Thus, if you invite friends over for dinner and one decides to climb into the attic without telling you, that person is probably a trespasser as to the attic. As another example, if you’re shopping at Winco (as an invitee), but you decide to sneak into the “employees only” area of the store, you have become a trespasser.
So what’s it matter whether a visitor to your land is an invitee, licensee, or trespasser? The answer is pretty much everything depends on these distinctions. You owe the highest duty to the invitee — you have the obligation to “exercise ordinary care” to keep the premises in a “reasonably safe condition.” You also owe a duty to give warning of any concealed defects that you know of or that you should know of. (I used to have a rickety back step that would qualify as a concealed defect, because it looked solid, but would tip depending on where you stepped on it.) Thus, you have an affirmative obligation to take reasonable steps to ensure the safety of an invitee. This is why the folks at Winco are constantly patrolling, looking for spilled food, broken glass, or other potential hazards.
As to a licensee, you don’t owe any affirmative obligation to keep that person safe. Instead, you have a duty not to injure him by a “willful and wanton act” or an “affirmative act of negligence.” So, you can’t punch your unruly guest for example. You also have to “refrain from knowingly exposing him to dangerous existing hazards” that the licensee doesn’t know about. For example, if you have an aggressive dog that you know could attack your guest, you have to refrain from exposing your guest to that dog — at least until you tell the licensee that the dog is dangerous.
Finally, as to a trespasser, you owe no duty at all so long as his presence is unknown or could not reasonably have been anticipated. But once you learn of the trespasser’s presence, you have a duty not to injure him by a “willful and wanton act” or an “affirmative act of negligence.”
My friend’s concern about the uneven patio then is really only a social or practical concern — not a legal one. If I come over for a beer, set my chair leg on a crack in the patio, tip myself over, and break my arm, she won’t be liable. I was there as a licensee and the uneven patio surface is not a concealed defect. So long as she didn’t intentionally set my chair in such a way as to make it likely that I would fall, she’ll be fine.
I hope she gets that patio done soon — I’ll be keeping an eye on my email for an invitation to come enjoy some backyard brews around the fire pit!